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2010 DIGILAW 3311 (ALL)

Bachchan Babu v. Vijay Raj Singh

2010-10-25

RAKESH TIWARI

body2010
Rakesh Tiwari, J.—Heard learned counsel for the parties and perused the record.2. This writ petition has been filed with the prayer for quashing the judgment and orders dated 6.5.2008, passed in S.C.C. Suit No. 91 of 2004 and 23.7.2010, passed in S.C.C. Revision No. 29 of 2008.3. The brief facts of the case are that the respondent-plaintiff filed S.C.C. Suit No. 91 of 2004 against the petitioner for eviction from the shop in dispute and recovery of arrears of rent. The petitioner contested the suit by filing written statement denying the plaint allegations. The Judge, Small Causes Court, Aligarh after hearing learned counsel for the parties and appreciation of record allowed Suit No. 91 of 2004 vide judgment and order dated 6.5.2008. Aggrieved by the aforesaid order, the petitioner preferred S.C.C. Revision No. 29 of 2008 which has also been dismissed by the revisional court vide judgment and order dated 23.7.2010.Against the said order dated 23.7.2010, the petitioner has filed this writ petition.4. On perusal of record, it appears that Judge, Small Causes Court, Aligarh has found that the suit was filed for eviction of the petitioner as a sum of Rs. 16,650 was due against him which was also sought to be recovered by the landlord.5. The contention of learned counsel for the petitioner is that arrears of rent must have been deposited before filing of the revision and the Judge, Small Causes Court, Aligarh has not recorded any finding of fact with regard to material alteration or raising of wall by the petitioner. According to him the Court has not decided as to whether the utility of shop in dispute has diminished. He further submits that the shop in dispute is situated in a narrow lane of village Gabhana and not on the road.6. Per contra, learned counsel for the respondent has submitted that the petitioner without permission of the landlord exceeding his right as tenant demolished whole of the old dilapidated construction and has raised new construction on its place. Therefore, he is liable to vacate the shop in question on the ground of making material alteration.7. The relevant portion of order of the court below regarding material alteration, which the Court has considered the evidence and recorded its finding is thus :@ Hindi @8. Therefore, he is liable to vacate the shop in question on the ground of making material alteration.7. The relevant portion of order of the court below regarding material alteration, which the Court has considered the evidence and recorded its finding is thus :@ Hindi @8. From perusal of the judgment it is apparent that the court below has recorded a finding of fact that petitioner got constructed a new construction of shop. It has also come in the finding of the court below that the shop was on rent and the same was not in a very old condition. The Court has also noticed that according to own admission of the petitioner he has made material alteration without written consent of the landlord and the shop in question is situated in Gabhana bazar.9. After hearing the counsel for the petitioner and from perusal of record as well as from the aforesaid facts it is reflected that the shop in question which was taken by the petitioner on rent has been demolished and the same is not in existence. For this reason also he cannot be said to be a tenant of the shop which was let out by the respondent. Even otherwise the petitioner has constructed the shop 9 inches wall for which he was not permitted by the landlord. According to statute tenant is estopped from making any material alteration without written consent of the landlord.10. For these reasons, the Court is of the view that since the old shop which has been demolished by the petitioner is not in existence, the new construction made by the petitioner would tantamount to material alteration. Both the courts below have given concurrent findings of fact against the petitioner with regard to new construction of shop in dispute without written permission of the landlord, hence there is no illegality in the impugned orders. In the circumstances, no interference is called for in the findings recorded by the court below11. The writ petition is, accordingly dismissed. No order as to costs._